These views make it unnecessary to decide the questions argued as to the actual existence of the highway; because, if it does exist, that fact does not constitute a defense to the action.
III. Common or profits & prendre.1
10 Wendell (N. Y.), 639. - 1833.
[Reported herein at p. 475.]
1 These rights were anciently common of pasture, piscary, turbary and estovers. They are rarely to be found at present. - Ed.
53 Pennsylvania State, 206. - 1886.
[Reported herein at p. 76.]
31 Pennsylvania State, 475. - 1858. [Reported herein at p. 102.]
19 New York, 68. - 1859.
[Reported herein at p. 81.]
1 Wharton (Pa.), 336. - 1836.
[Reported herein at p. 86.]
21 New York. 280. - 1860. [Reported herein at p. 412.]
1 Ohio State, 350. - 1853.
[Reported herein at p. 14.]
116 New York, 167. - 1889,
Suit to restrain the city of Syracuse from granting to the Central City Water-works Co. the right to place pipes, etc., in the city of Syracuse, with a view to supply it with water. A second case, argued herewith, was brought to restrain that company and the city from proceeding under a resolution which the common council had passed. Judgment for the defendants. Plaintiffs appeal.
Bradley, J. - The company evidently was created solely for the purpose of supplying water to the city for the use of it and its inhabitants; and, so far as appears, the city then had no means for such supply other than such as had been possessed by Teall and his associates, and such as it may have been contemplated the plaintiff would provide. It must be assumed that the Legislature was advised of the situation, and that the franchise was granted for all the purposes within the provisions of the charter. The question now under consideration is the legislative intent. And for the purpose of ascertaining the powers and privileges which were granted to the plaintiff, other than those incidental to the powers expressly given and necessary to carry them into effect, reference can be had only to the terms of the grant. 2 Kent's Com. 298; 1 R. S. 600, § 3; Halstead v. Mayor, etc., 3 N. Y. 433.
The construction and effect to be given to the contract between the State and the grantee of a franchise, have been the subject of much discussion, and the view of Chancellor Kent at one time was that, although " the creation of the franchise be not declared exclusive, yet it is necessarily implied in the grant, as in the case of the grant of a ferry, bridge or turnpike or railroad, that the government will not either directly or indirectly interfere with it so as to destroy or materially impair its value. All grants of franchises ought to be so construed as to give them due effect by excluding all contiguous competition which would be injurious and operate fraudulently upon the grant." 3 Kent's Com. 469; Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. 101.
Whatever support that rule may seemingly have in reason or propriety, it is not now available to that extent for the beneficial protection of the grantee in the exercise of his franchise, but, on the contrary, public .grants are to be so strictly construed as to operate as a surrender by them of the sovereignty no farther than is expressly declared by the language employed for the purposes of their creation.
The grantee takes nothing in that respect by inference. Such is deemed the legal intent of the State in imparting to its citizens or corporations powers and privileges of public character. And, therefore, except so far as they are by the terms of the grant made exclusive, the power is reserved to grant and permit the exercise of competing and rival powers and privileges, however injurious they may be, to those taken by the prior grantee.
The important leading case to that effect in this country was Charles River Bridge v. Warren Bridge, 11 Peters, 420, where was sustained the grant of the right to erect a bridge over the Charles river, near one which had been constructed over the same river pursuant to prior grant from the State of Massachusetts, although it produced a competition practically destructive of the value to the grantee of such prior franchise. And this was put upon the ground, resulting from the declared rule of construction of such grants, that they should be strictly construed as against the grantee, and that nothing should be taken by inference or presumption to enlarge their import. The court held that the State had relinquished its sovereignty so far only as the purpose to do so was expressed in the prior grant, and, therefore, as it had not by it made the franchise exclusive in that locality, or denied to itself the power to grant similar privileges to others, there was no violation of the legal rights of the prior grantee produced by the subsequent one complained of. Although that case was determined by a divided court, and it does not very clearly appear, by the report of it, upon precisely what ground all the members of the majority placed their concurrence in the result, the doctrine there announced by Mr. Chief Justice Taney has since then then treated by that court as established. Lehigh Water Co. v. Easton, 121 U. S. 391. It has also been adopted and is the settled rule in this State. Mohawk Bridge Co. v. Utica & S. R. R. Co., 6 Paige, 554; Oswego Falls Bridge Co. v. Fish, 1 Barb. Ch. 547; Thompson v. IV. Y. 6° H. R. R. Co., 3 Sand. Ch. 625; Auburn, etc., Plank Road Co. v. Douglass, 9 N. Y. 444, 452; Fort Plain Bridge Co. v. Smith, 30 Id. 44, 61; Power v. Village of Athens, 99 Id. 592; Dermott v. State, Id. 107. * * *
The inquiry which presents more important considerations has relation to the franchise granted to the plaintiff, and represented by its charter. By it the plaintiff was given corporate existence and vested with powers and privileges to enable it to exercise its functions. This incorporeal hereditament was its property, and whatever other or corporeal property it had or acquired, having relation to its legitimate powers, and for the purposes of their exercise, became, and while applicable to such purpose was inseparably united with the franchise. The corporate rights and the corporeal means of their exercise, therefore, constitute, as it were, a single body consisting of property corporeal and incorporeal. Both the power and the means of exercising it are essentially united, and upon such union is dependent the enjoyment, as well as the practical value of the franchise. Gue v. Tidt Water Canal Co., 24 How. U. S. 257; People v. O'Brien, 111 N. Y. 2.